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«February 2014 Review of the Balance of Competences between the United Kingdom and the European Union Culture, Tourism and Sport © Crown copyright ...»

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Review of the Balance of

Competences between the

United Kingdom and the

European Union

Culture, Tourism and Sport

February 2014

Review of the Balance of

Competences between the

United Kingdom and the

European Union

Culture, Tourism and Sport

© Crown copyright 2014

You may re-use this information

(excluding logos) free of charge in any

format or medium, under the terms of the

Open Government Licence. To view this

licence, visit http://www.nationalarchives.gov.uk/

doc/open-government-licence/ or e-mail: psi@nationalarchives.gsi.gov.uk.

Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned. Any enquiries regarding this publication should be sent to us at BalanceofCompetences@cabinet-office.gsi.gov.uk.

This document is also available from our website https://gcn.civilservice.gov.uk/ Contents Executive Summary 5 Introduction 9 Chapter 1 Development of EU Competences and the Current State of Competence 13 Chapter 2 The Impact on the National Interest 25 Chapter 3 Future Options and Challenges 41 Annex A List of Evidence Received 49 Annex B Other Sources 52 Executive Summary This report examines the balance of competences between the European Union (EU) and the United Kingdom (UK) in the areas of culture, tourism and sport, and is led by the Department for Culture, Media and Sport. It is a reflection and analysis of the evidence submitted by experts, non-governmental organisations, businesspeople, Members of Parliament and other interested parties, either in writing or orally, as well as a literature review of relevant material. Where appropriate, the report sets out the current position agreed within the Coalition Government for handling this policy area in the EU. It does not predetermine or prejudge proposals that either Coalition party may make in the future for changes to the EU or about the appropriate balance of competences.

It is one of 32 reports that will together analyse what membership of the EU means for the UK’s national interest. They aim to deepen public and parliamentary understanding of our relationship with the EU.

This report covers the sectors of Culture, Tourism, and Sport, drawing on 52 submissions received in response to a call for evidence which was distributed widely in the UK, to selected European organisations and members of the European Parliament. It was also made available online.

This report covers the scope of the EU’s competences as they affect the UK, how they are used, how they impact on our national interest, and future challenges.

All the contributors who submitted evidence for this report held the view that the current EU’s supporting competences in culture, tourism and sport were on balance either beneficial to the future development of these sectors and UK national interest or had the potential to be so.

But none of the contributors argued in favour of extension of the EU’s competences in these areas, and a number of contributors warned of the need to remain vigilant against moves by the EU to extend its competence.

The EU’s competence in relation to culture dates back to the Maastricht Treaty in 1992. Of the three sectors covered by this report, contributors from the culture sector were the most satisfied that the balance and exercise of the EU’s supporting competence operated in the national interest. On the whole the EU’s culture competence, the longest standing of the three, is seen by contributors as an important source of funding for the sector, as a driver for new creative partnerships, and as a vehicle for promoting the UK’s ‘soft power’.

The EU’s competences in relation to tourism and sport are relatively new, dating back to the Lisbon Treaty of 2009. The EU is yet to legislate under either competence, although various 6 Review of the Balance of Competences between the United Kingdom and the European Union: Culture, Tourism and Sport policy initiatives have been announced. Contributors were more balanced in their assessment of the benefit to the UK national interest of EU activity in these areas. In sport, contributors saw signs of optimism that the new competence may lead to a more coherent application of broader EU policy on sport. In tourism, contributors were more equivocal, conscious that the rigorous competition between Member States for visitors makes assessing the benefits to the UK of community action complex, and wary that the competence could be used to impose greater regulation.

Contributors from all three sectors also commented on the very significant impact of the EU’s activity on their sectors under competences not covered by this report, in particular in relation to State aid, immigration, the Single Market (free movement of persons, goods and services) and Structural Funds. As stated in the call for evidence, this report is not intended to address those other competences. This valuable evidence is reflected in other reports.

Looking ahead, none of the contributors to this report identified substantial challenges to the future UK national interest in the current balance of competence between the UK and EU in relation to culture, tourism or sport. Nor did any of the contributors advocate radical options for change in the balance of these competences.

Those challenges that were identified relate to the EU’s operation, and administration, of its

existing competence. These fall into three main categories:

• Challenges to the sectors’ ability to maximise benefit to the UK due to bureaucracy of the EU;

• Challenges presented by the future, potentially burdensome action of the EU under its competences; and

• Challenges presented by the EU’s potential failure to use its competences in culture, tourism and sport to influence action under other competences that impact on these sectors.

A further theme to emerge is that in all three sectors the UK is considered by its stakeholders to be a leader in best practice, international relations and policy development compared with other Members States. This brings opportunities in terms of the UK’s ability to drive the EU agenda for culture, tourism and sport, but also challenges, in that other Member States may stand to gain more from EU support under these competences than the UK.

Introduction This report is one of 32 reports being produced as part of the Balance of Competences Review.

The Foreign Secretary launched the Review in Parliament on 12 July 2012, taking forward the Coalition commitment to examine the balance of competences between the UK and the EU.

It will provide an analysis of what the UK’s membership of the EU means for the UK national interest. It aims to deepen public and Parliamentary understanding of the nature of our EU membership and provide a constructive and serious contribution to the national and wider European debate about modernising, reforming and improving the EU in the face of collective challenges. It has not been tasked with producing specific recommendations or looking at alternative models for Britain’s overall relationship with the EU.

The Review is broken down into a series of reports on specific areas of EU competence, spread over four semesters between 2012 and 2014. More information about the Review, including a timetable of reports to be published over the next two years, can be found at https://www.gov.uk/review-of-the-balance-of-competences.

The analysis in this report is based on evidence gathered following a call for evidence. It draws on written evidence submitted, notes of seminars or discussions held during the call for evidence period and the results of an online survey. It is a reflection and analysis of the evidence submitted by experts, national funding bodies and institutions, the devolved administrations, professional and governing bodies, small grassroots organisations and other interested persons or organisations. A list setting out those who contributed evidence can be found in Annex 1.

For the purposes of this review, we are using a broad definition of competence.  Put simply, competence in this context is about everything deriving from EU law that affects what happens in the UK.  That means examining all the areas where the Treaties give the EU competence to act, including the provisions in the Treaties giving the EU institutions the power to legislate, to adopt non-legislative acts, or to take any other sort of action. But it also means examining areas where the Treaties apply directly to the Member States without needing any further action by the EU institutions.

This report does not cover the entire scope of the work of the Department for Culture, Media and Sport (DCMS). This report does not include consideration of telecommunications and media sectors. This is because the EU has not been conferred with specific competences for these sectors but acts under a wide range of shared and exclusive competences which have a

very significant impact on our sectors, including the regulation of telecommunications and audiovisual content under the Single Market for services. This will be covered in the Single Market:

Services report. DCMS’s equalities brief will be covered in the report on Social and Employment.

10 Review of the Balance of Competences between the United Kingdom and the European Union: Culture, Tourism and Sport Definition of EU Competence The EU’s competences are set out in the EU Treaties, which provide the basis for any actions the EU institutions take. The EU can only act within the limits of the competences conferred on it by the Treaties, and where the Treaties do not confer competences on the EU they remain with the Member States.

Types of competence:

Exclusive: Only the EU can act in areas where it has exclusive competence, such as the customs union and common commercial policy.

Shared: In areas of shared competence, such as the Single Market, environment and energy, either the EU or the Member States may act, but the Member States may be prevented from acting once the EU has done so.

Supporting: In areas of supporting competence, both the EU and the Member States may act, but action by the EU does not prevent the Member States from taking action of their own.

In all three cases the EU must act in accordance with fundamental rights as set out in the Charter of Fundamental Rights (such as freedom of expression and non-discrimination) and with the principles of subsidiarity and proportionality. Under the principle of subsidiarity, where the EU does not have exclusive competence, it can only act if it is better placed than the Member States to do so because of the scale or effects of the proposed action. Under the principle of proportionality, the content and form of EU action must not exceed what is necessary to achieve the objectives of the EU treaties.

EU competence in relation to Culture, Tourism and Sport is supporting.

What Do We Mean by Culture, Tourism and Sport?

There is no precise EU definition of the tourism sector. The EU Commission’s Communication on the future of EU Tourism of 13 November 2001 noted that it is ‘a service sector with a particularly complex product dependent on an extremely fragmented supply. Each link in the chain (travel agencies, tour operators, carriers, hoteliers, restaurateurs etc) offers one element in the overall product’.1 That product is extremely diverse. Natural and cultural resources, tourist facilities, the communications infrastructure, accommodation and restaurants are the basic resources of the tourist destination. The combination of local tourism resources and the services offered determines the type of tourism to which a destination belongs: such as coastal or mountain tourism, sport or religious tourism, thermal or gastronomic tourism, and of course business tourism.

For the purpose of the EU’s competence in culture, the Commission defines it ‘as a sector of activity which involves some form of creativity in its production: is concerned with the generation and communication of symbolic means: and has output potentially embodying at least some form of intellectual property’.2 While the regulation of audio-visual services is not covered by this report, the funding of programmes to support and fund some audio-visual content falls within the EU’s culture competence (the MEDIA fund) and so will be considered here.

Commission Communication to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions, Working together for the Future of European Tourism, COM (2001) 665 final, November 2001.

DG Education and Culture, The Economy of Culture in Europe (2006).

For sport the EU uses the definition established by the Council of Europe (CoE), which encompasses ‘all forms of physical activity which through casual or organised participation aim at expressing or improving physical fitness and mental well-being, forming social relationships, or obtaining results in competition at all levels’.3 Council of the European Union, European Manifesto on Young People and Sport (1995).

Chapter 1:

The Development of Competence and the Current State of Competence Overview

1.1 The EU’s competences in relation to culture, tourism, and sport are relatively new. Article 6 Treaty on the Functioning of the European Union (TFEU) provides that they are supporting only. Articles 165 (sport), 167 (culture) and 195 (tourism) then provide the legal base for possible EU action. This means that both the EU and the Member States may act, but action by the EU does not oblige the Member States to change their laws and does not prevent the Member States from taking action of their own. The EU is also expressly given external competence; that is, the capacity of the EU to act internationally on its own behalf, including by concluding or being a party to international agreements with third countries – in respect of sports and culture. While there is no express external competence in respect of tourism, external competence can arise under Article 216 TFEU where, for example, the conclusion of an agreement is provided in EU legislation or where an agreement is likely to affect EU rules or alter their scope.1

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